Dr LM Singhvi Memorial Lecture: Doctrine of separation of power fundamental to our governance, says V-P Dhankhar

The judiciary cannot become the legislature or executive as any incursion by one organ into the domain of the other can upset the apple cart of governance, said Vice President Jagdeep Dhankhar on Friday.

Speaking at the eighth LM Singhvi memorial lecture, Dhankhar said: “Our judiciary being one of the critical institutions of governance cannot be the executive or legislature. The doctrine of separation of power is fundamental to our governance. Any incursion, howsoever subtle, in the domain of the other by one has the capacity or potential to unsettle the apple cart of governance.”

Referring to certain instances from the recent past when constitutional amendments passed unanimously by both Houses of Parliament that reflected the people’s will was overturned by courts, he said: “Power resides in ‘We the People’ – their mandate, their wisdom... If a constitutional provision that carries the ordainment of the people at large in such a vibrant democracy is undone, what will happen?”

With Supreme Court and high court judges in attendance along with members of Parliament, the Vice President said: “I appeal to the people here – they constitute the judicial elite class, thinking minds, intellectuals, please find out a parallel in the world where a constitutional provision can be undone. I appeal to everyone that these are the issues that must not be viewed on partisan lines. I expect everyone to rise to the occasion and to be part of the growth story that is India.”

The comments have come in the backdrop of the recent tussle between the government and the judiciary, with the Supreme Court collegium coming under attack from the Union law minister Kiren Rijiju, who termed it “opaque” and “non-accountable”. The Supreme Court responded to those comments early this week by observing that what happened “should not have happened”. It even told the Centre that the National Judicial Appointments Commission (NJAC) -- brought in as a Constitution Amendment Act in 2014 and struck down by a five-judge bench of the Supreme Court in 2015 – having not passed muster of the court, cannot be a reason to delay judicial appointments.

The Vice President referred to a similar situation when he said: “Imagine a situation when the Indian Parliament reflected the mindset of the people. Indian Parliament in 2015-16 was dealing with a constitutional amendment act and as a matter of record the entire Lok Sabha voted unanimously. With no dissension, the Amendment Act was passed. In the Rajya Sabha, too, it was unanimous. The power of the people came to be reflected through most sanctified mechanism on a legitimate platform. That power was undone.” However, it was not clear which law he was referring to since the NJAC was passed in 2014.

He said: “The basic of basic structure is primacy of will of the people. In democracy or in any governance, there can be nothing more basic than the privilege of the rights of the people. If that gets a shape and then we have this kind of a scenario, I am sure it is never too late to reflect and think.”

Being a senior lawyer himself who practised at the bar, Dhankhar said: “The Indian Constitution provides in explicit terms Article 145(3) when interpretation of the Constitution can be undertaken by the court when a substantial question of law is involved. Nowhere it says a provision can be run down.”

Having seen both sides of governance both as a senior advocate and a parliamentarian, he said that the legislature provides a platform where all issues can be debated and traversed. He gave the reference of the US Patriots Act passed in the backdrop of the September 11 terror attacks that was passed despite having discriminative provisions. “It emanated from a source that was taken as not beyond reach of any other authority. And that is why primacy of national interest prevails.”